THE  CONSTITUTION  UPHELD  AND  MAINTAINED. 


/ 

l 

v- 


S  P  EE  C M 

OK 


HON.  JAS.  HARLAN, 

OF 

THE  UNITiCD  STATES  SENATE. 


In  this  country  every  patriot  reverences  the  Constitution  and  the  laws.  Every 
■wanton  violation  of  either  stirs  his  indignatiou.  As  in  Home  the  voice  of  the 
people  was  said  to  be  the  voice  of  God,  so  in  this  country  the  law  i3  our  only 
sovereign  which  all,  from  the  President  to  the  humblest  among  the  toiling  mil¬ 
lions,  must  implicitly  obey.  Whoever  wantonly  tramples  the  Constitution  and 
the  laws  under  his  feet,  is  properly  held  to  be  an  enemy  of  the  people,  and  at 
war  with  their  dearest  interest. 

Relying  on  this  reveience  for  the  law  of  the  land,  the  rebels  of  the  South  and 
their  allies  in  the  North,  have  sought  to  justify  their  treason,  and  secure  a 
diversion  in  favor  of  their  wicked  purposes,  by  denouncing  the  President  as  a 
usurper  and  tyrant,  and  his  administration  as  unconstitutional.  So  persistently 
have  they  pursued  this  course,  as  to  convince  many  honest  and  patriotic  citi¬ 
zens  of  its  truth.  So  that  many  of  the  President’s  warmest  admirers,  and  con¬ 
sistent  and  ardent  friends  of  the  Union,  justify  these  supposed  violations  of  the 
Constitution  on  the  ground  of  ‘‘  military  necessity,”  and  the  duty  of  the  Presi¬ 
dent  to  preserve  the  Government.  Nor  will  I  dispute  the  potency  of  this  de¬ 
fense  of  what  would  otherwise  be  the  unlawful  act  of  a  nation  or  an  individual. 
For  the  right  to  self-preservation  is  the  first  law  of  nations  as  well  as  of  nature. 
This  principle  underlies  every  national  code,  and  every  system  of  legal  casuistry. 
None  are  so  foolish  as  to  insist  that  a  nation  may  not  disregard  its  own  laws  to 
avoid  destruction ;  and  none  except  rebels  steeped  in  crime  could  desire  our 
Government  to  tamely  submit  to  annihilation. 

But  having  carefully  observed  the  administration  of  public  affairs  by  Presi¬ 
dent  Lincoln,  and  as  carefully  examined  the  charges  of  unconstitutionality  pre¬ 
ferred  against  it,  I  fearlessly  pronounce  them  groundless. 

Let  us  examine  for  a  few  minutes  some  of  the  gravest  of  these  charges. 

CALL  FOR  MILITIA. 

1.  The  rebels  South  and  North  denounce  the  first  belligerent  act  of  Presi¬ 
dent  Lincoljgn-his  call  for  some  seventy-five  thousand  militia — as  unconstitu¬ 
tional  and  tyranical. 


2 

Anri  yet  the  Constitution 
have  power 

“  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  Union,  suppress 
insurrection,  and  repel  invasion.”  (Art.  1,  Sac.  8.) 

And  Congress  had,  under  this  provision  of  the  Constitution,  ninny  years  before 
provided  by  law  for  the  use  of  the  militia  by  the  President,  whenever  it  might 
become  necessary  for  the  purposes  named.  And  the  necessity  had  arisen;  a 
gigantic  insurrection  existed  ;  it  had  made  open  and  flagrant  actual  war  on  the 
Government  both  by  laud  and  sea.  And  the  President  in  pursuance  of  his  oath 
to  execute  the  laws,  made  the  call  for  troops  to  assist  him. 

THE  CONSCRIPTION. 

2.  The  Copperheads  denounce  the  President  /or  the  “ conscription 77  or  “draft” 
of  soldiers  to  fill  up  the  depleted  ranks  of  our  armies. 

And  yet  none  will  seriously  deny  that  all  able  bodied  male  citizens,  owe  their 
services  to  the  republic  when  needed  for  its  defense,  or  to  aid  in  the  enforcement 
of  its  laws  ;  and  that  if  they  do  not  voluntarily  spring  to  arms  when  the  neces¬ 
sity  arises,  they  may  be  compelled  to  serve;  and  that  without  the  right  to 
coerce  the  services  of  its  citizens  to  aid  in  the  common  defense,  and  to  enforce 
the  laws,  all  civil  government  would  prove  a  total  failure.  Hence  sheriffs,  and 
constables,  and  marshalls,  in  every  State  in  the  Union,  when  resisted  in  the 
execution  of  process,  are  authorized  by  law  to  call  “  by-standers,”  all  in  their 
reach,  for  assistance,  and  it  is  declared  to  be  a  crime  to  refuse  the  requisite  aid. 
So  it  is  now,  and  ever  has  beeo,  and  must  ever  continue  to  be^vhen  the  national 
authorities  are  resisted  by  internal  or  external  foes.  The  proper  (  fficers  must 
have  the  right  to  require  the  aid  of  all  the  people,  or  abandon  the  Government. 
But  if  the  services  of  all  are  Dot  needed  in  aDy  given  case,  there  is  no  fairer 
mode  of  making  the  selection  of  the  requisite  number  than  by  “casting  lots,’7 
whicn  is  but  another  name  for  “  Draft”  or  “  Conscription.” 

And  all  know  that  the  President  did  not  commence  raising  troops  in  this 
mode  until  Congress  enacted  b  ws  requiring  it  to  be  done.  That  Congress  had 
the  power  to  enact  those  laws  none  can  dispute.  For  the  Constitution  provides 
that  Congress  shall  have  power 

“  To  raise  and  support  armies.”  (Const.,  Art.  1,  Sec.  8.) 

The  power,  therefore,  is  plenary — it  is  without  restriction  ;  the  mode  of  rais¬ 
ing  them,  the  material,  pay,  government,  length  of  service,  character,  age,  color, 
and  nationality,  are  all  left  to  the  discretion  of  Congress.  And  Congress  directed 
that  the  President  should  call  for  volunteers,  and  if  the  quotas  of  the  several 
States  were  uot  thus  tilled,  he  should  select  the  residue  from  the  people  of  the 
delinquent  States  by  lot  or  draft.  Hence,  the  President,  so  far  from  violating 
the  Constitution  in  causing  men  to  be  drafted,  hrs  simply  obeyed  the  law. 
And  the  law  is  in  accordance  with  the  plainest  and  most  explicit  provisions  o. 
the  Constitution. 

ARMING  NEGROES. 

3.  They  denounce  the  President  for  violating  the  Constitution  in  arming 
negroes. 

And  yet  all  know  that  he  did  not  do  ho  until  Congress  had  enacted  a  law 
requiring  this  to  be  done.  And  the  power  of  Congress  to  pass  such  a  law  will 
hardly  be  questioned  after  reading  the  c.ause  of  the  Consiitution  above  cited, 
which  declares  that  “  Congress  shall  have  power  to  raise  and  support  armies.” 
Hpre  is  no  limitation.  The  troops  raised  may  be  black  or  white,  red  or  yellow, 


provides  in  so  many  words  that  Congress  shall 


» 


3 


0 


and  of  any  nationality;  they  may  be  natives  or  foreigners,  minors  or  adults, 
slaves  or  owners,  apprentices  or  masters;  and  so  far  as  the  question  of  power  is 
concerned,  may  be  required  to  serve  with  or  without  pay.  Nor  is  this  a  new 
policy.  Colored  troops  were  employed  in  this  country  during  the  revolutionary 
*ar  and  the  war  of  1812 — and  have  been,  and  are  still,  used  by  every  nation 
on  earth  controlling  colored  citizens  or  subjects.  If  authorities  were  wanting 
to  prove  this,  they  might  be  piled  up  by  the  volume. 

But  I  will  only  mention  in  passing  that  Senator  Johnson,  once  Attorney 
Geueral  of  the  United  S  ates,  a  gentleman  of  great  legal  learning,  and  hereto¬ 
fore  nut  a  friend  of  this  Admiuis:ratiou — who  has  neglected  no  opportunity  to 
reprimand  it  for  every  supposed  weakness,  error,  or  over  fig  at,  said  in  a  speech 
on  the  floor  of  the  Senate  at  its  last  session — 

“Mr.  President,  a  word  or  two  more  on  this  subject  before  I  leave  it.  I  have  had  oc 
casion  more  than  once  during  the  session  to  say  (and  that  opinion  I  confidently  entertain) 
that  although  by  the  laws  of  the  States  Africans  are  made  property,  they  are  also  under 
the  Constitution  of  the  United  States,  with  reference  to  the  war  power  of  the  Govern¬ 
ment,  to  be  considered  as  persons,  and  may  be  used  as  persons  and  brought  into  the  field 
to  maintain  the  authority  of  the  Government  to  which  as  persons  they  owe  allegiance. 
If  this  opinion  be  sound,  if  they  are  persons  subject  to  our  military  control,  if  they  are 
persons  increasing  our  military  power,  they  are  for  the  same  reasons  persons  under  the 
military  control  of  the  rebels,  and  may  increase  their  military  power,  and  as  such  it  is  as 
much  the  right  of  the  United  States  to  take  them  from  the  rebels  or  to  use  them  against 
the  rebels,  as  it  is  to  take  from  and  use  against  the  rebels  anything  else  that  may  be  used 
by  the  rebels  against  the  United  States. — ( Gong .  Globe. 

FREEDOM  OF  SPEECH  AND  OF  THE  PRESS. 

4  th.  The  President  is  accused  of  having  interfered  with  the  freedom  of  speech 
and  of  the  press. 

There  is  a  difference  between  freedom  and  licentiousness.  The  liberty  of  all 
to  acquire  property  does  not  include  the  right  to  steal  and  rob.  Freedom  of  loco¬ 
motion  does  not  include  the  right  to  trespass  on  another’s  premises.  Freedom 
to  love ,  and  to  be  loved ,  does  not  include  the  right  to  disturb  your  neighbor’s 
domestic  happiness.  So  “  freedom  of  the  press  ”  does  not  include  the  right  to 
print  and  circulate  counterfeit  bank  notes  ;  nor  freedom  of  speech,  the  right  to 
slander  your  neighbor,  or  “  to  give  aid  and  comfort  ”  to  the  public  enemy  in 
time  of  war.  And  if  any  one,  under  the  pretense  of  a  right  to  freedom  of  speech 
or  of  the  press,  commits  treason,  he  may  and  ought  to  be  restrained  and  pun¬ 
ished.  To  pretend  the  contrary,  would  indicate  extreme  mental  obtuseness  or 
unpardonable  and  criminal  wickedness. 

if  the  President  has  in  any  case  suppressed  a  newspaper,  or  arrested  any  one 
for  words  spoken,  in  which  the  parties  were  not  intentionally  and  ostentatiously 
encouraging  the  rebels  to  continue  the  war,  and  stimulating  their  northern  sym¬ 
pathizers  to  obstruct  and  embarrass  the  Government  in  its  efforts  to  suppress 
the  rebellion,  it  has  never  come  to  my  knowledge.  But  whether  he  has  or  has 
not  erred  in  any  given  case,  in  relation  to  the  guilt  or  innocence  of  the  party,  is 
not  the  real  question.  All  admit  that  bis  intentions  are  pure.  The  real  ques¬ 
tion  is  one  of  constitutional  right  to  prevent  publishers  of  uewspspers  and  stump 
speakers  from  committing  treason — from  giving  aid  and  comfort  to  the  public 
enemy. 

And  the  right  to  suppress  a  newspaper  used  in  the  interest  of  treason  is  as 
clear  and  indisputable  as  the  right  to  take  a  dagger  from  the  hand  of  the  assas- 
siu,  tools  from  the  counterfeiter,  or  muskets  from  the  bands  of  the  rebels.  The 
freedom  of  speech  and  of  the  press  is  not  more  explicitly  guarantied  by  .the 
Constitution  than  “  the  right  to  bear  arms.” 

But  before  leaving  the  subject,  I  propose  to  prove,  from  the  official  record, 


4 

that  the  Copperheads  themselves  do  not  believe  their  own  statements  onthi  s 

subject. 

Immediately  preceding  the  last  presidential  election,  Jefferson  Davis  offered 
for  the  consideration  ot'  the  Senate,  a  series  of  resolutions  declaratory  of  the 
principles  which  should  control  in  ihe  administration  of  the  affairs  of  the  Na¬ 
tional  Government.  When  the  secoud  resolution  of  the  series,  which  made  a 
covert  attack  on  the  freedom  ot  discussion,  was  under  consideration,  I  offered 
the  following  as  an  amendment: 

“But  the  free  discussion  of  the  morality  and  expediency  of  slavery  should  never  be 
interfered  with  by  the  laws  of  any  State  or  of  the  United'  States  ;  and  the  freedom  of 
speech  nnd  of  the  press,  on  this  and  every  other  subject  of  domestic  and  national  policy, 
should  be  maintained  inviolate  in  all  the  States.” 

The  question  being  taken  on  this  amendment,  by  yeas  and  nays,  resulted 
yeas  20,  nays  36 — every  Democratic  Senator  voting  in  the  negative,  including 
Blight,  of  Indiana,  Gwinn  and  Latham,  of  California,  Lane,  of  Oregon,  Pugh, 
of  Ohio,  and  Thompson,  of  New  Jersey,  all  representing  northern  States,  and 
all  from  border  slave  States,  as  well  as  those  from  the  extreme  South. — (Cong. 
Globe,  1st  session,  36ih  Congress,  pages  1937-2321.) 

On  the  8th  of  April  last,  when  Senator  Powell,  of  Kentucky,  was  denouncing 
the  President  for  interfering  with  what  he  styled  “freedom  of  speech,”  I  called 
his  attention  to  the  foregoing,  reminding  him  that  he  and  all  hia  Democratic 
associates  in  the  Senate  voted  against  free  speech.  He  replied  that  the  scope  of 
the  amendment  would  have  been  to  send  persons  down  South  to  preach  insur¬ 
rection  to  their  slaves.  “  I  would  vote  nay  again  on  that  resolution.  I  voted 
right.” — (Cong.  Globe,  1st  session,  38th  Congress,  page  1487.)  That  is,  ac¬ 
cording  to  his  admission,  “  the  freedom  of  speech  and  of  the  press”  may  be 
suppressed  to  pr event  the  insurrection  of  negroes  and  to  preserve  slavery  !  Then 
may  not  its  licentiousness  be  restrained  to  suppress  the  rebellion  or  wbite  men, 
and  to  preserve  the  Government . 

CONFISCATION". 

5th.  The  Copperheads  denounce  the  administration  for  the  confiscation  of  the 
property  of  rebels  and  the  liberation  of  their  slaves. 

And  yet  the  Constitution  says: 

“The  Congress  shall  hate  power  to  declare  the  punishment  of  treason.” — (Art  Sec.  3.) 

And  Congress,  in  pursuance  of  this  provision  provided  by  law,  that  unless 
these  traitors  should  lay  down  their  arms  and  return  to  their  allegiance  within 
a  time  to  be  fixed  by  the  President,  they  should  be  punished  by  the  confiscation 
of  all  their  property,  including  slaves. 

And  why  should  they  uot  be  thus  punished  ?  Heretofore  the  punishment  of 
treason  was  death.  This  is  the  usual  penalty  for  this  offence  in  every  civilized 
country  on  earth.  It  you  may  hang  for  treason  why  may  you  not  inflict  a  less 
punishment — the  logs  of  property  \  And  if  you  may  proscribe  the  loss  of  prop¬ 
erty  as  the  punishment  of  treason,  why  may  you  not  include  slave  property  ? 
Is  property  in  slaves  any  more  sacred  than  property  in  cattle  and  lands?  The 
power  conferred  by  the  Constitution  is  plenary.  They  may  declare  it  to  be  the 
loss  of  lands,  cattle,  mules,  horses,  negroes,  or  franchises,  such  as  the  right  to 
vote,  hold  office,  or  bear  arms.  There  is  no  limitation  whatever  except  that  the 
punishment  declared  shall  not  be  inflicted  on  the  children  of  the  traitor.  You 
shall  not  deprive  the  child  of  the  right  to  vote,  hold  office,  bear  arms,  or  to  ac¬ 
quire  property  on  account  of  the  parents  treason. 

EMANCIPATION  PROCLAMATION. 

6th.  The  President  is  denounced  for  issuing  a  proclamation  liberating  the 
slaves  of  rebels  within  the  rebellious  districts. 


5 


And  pray  why  not?  We  have  just  seen  that  “Congress  may  declare  the 
punishment  of  treason  :”  that  in  pursuance  of  this  provision  of  the  Constitution, 
Congress  did  declare  that  all  traitors  who  should  not  lay  down  their  arms  by  a 
time  to  be  fixed  by  the  President,  should  forfeit  all  their  property  of  “  every 
kind,”  including  slave  property.  The  President  had  taken  a  solemn  oath  to  take 
care  that  this  and  all  other  “laws  should  be  faithfully  executed.”  Within  the 
rebellious  districts  this  confiscation  act  could  not  be  enforced  by  the  courts.  But 
it  was  believed  that  if  not  impeded  by  the  army  and  navy,  it  would  to  some  ex¬ 
tent  execute  itself,  that  many  thousands  of  the  slaves  if  protected  would  aban¬ 
don  their  rebel  masters.  And  to  secure  this  result  the  President  issued  his 
proclamation,  declaring  that  within  the  rebel  districts,  all  persons,  irrespective 
of  their  former  status,  should  be  considered  and  treated  by  the  United  States 
Government  as  freemen;  and  requiring  the  officers  of  the  army  and  navy  to 
recognize  their  right  to  maintain  their  liberty.  And  if  it  is  admitted  to  be  right 
to  punish  rebels  withiu  our  lines  by  the  confiscation  of  their  property,  including 
slaves,  pray  can  it  be  wrong  to  do  the  same  thing  beyond  our  lines  so  far  as  the 
effort  can  be  made  effective  ?  .  . 

It  is  objected,  however,  that  the  proclamation  if  enforced  would  liberate  the 
slaves  of  Union  citizens  as  well  as  of  rebels.  Aud  it  is  clear  that  the  emancipa¬ 
tion  of  slaves  of  Union  citizens  who  had  not  aided  the  rebellion  could  not  be 
justified  under  the  clause  of  the  Constitution  authorizing  Congress  to  declare 
the  punishment  of  treason  ;  and  to  that  extent  the  proclamation  would  be  void, 
unless  justified  by  the  public  necessities;  and  in  that  case  the  parties  thus  losing 
slaves  would  have  the  same  right  to  just  compensation  as  if  other  property  had  been 
taken  for  a  similar  purpose.  And  this  would  be  a  question  for  the  courts  to  adju¬ 
dicate  when  the  supremacy  of  the  Constitution  and  laws  shall  have  been  restored. 

SUSPENSION  OF  THE  WRIT  OF  HABEAS  CORPUS. 

7th.  It  is  aver ed  that  the  President  violated  the  Constitution  by  suspending 
the  writ  of  habeas  corpus.  , 

And  yet  the  Constitution  says: 

“  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when  in 
cases  of  rebellion  or  invasion  the  public  safety  may  require  it.” — (Constitution,  Art.  1st, 
eeo.  9.) 

This  is  what  is  styled  by  lawyers  a  negative  pregnant;  and  is  equivalent  to 
saying  that  “  the  priviledge  of  the  writ  of  habeas  corpus  maybe  suspended  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it.”  And  as  a 
rebellion  does  exist,  the  priviledge  of  the  writ  may  be  properly  suspended  if  the 
public  safety  requires  it.  There  can  be  no  question  of  the  right  to  suspend  it: 
the  only  question  that  can  arise  is,  “who  can  judge  of  the  necessity  ?”  On  this 
question  a  large  majority  of  the  best  legal  minds  of  the  country  who  have  ex¬ 
pressed  an  opinion  on  this  point,  conclude  that  the  President  is  the  proper  par¬ 
ty  to  excercise  this  judgment,  as  he  is  the  Commander-in-Chief  of  the  Armies 
and  Navies  of  the  Republic,  and  is  at  the  same  time  the  chief  executive  officer 
entrusted  with  the  enforcement  of  the  laws.  Others,  however,  conclude  that 
Congress  should  decide  when  the  public  safety  requires  its  suspension.  Hence, 
to  silence  cavil  Congress  enacted  a  law  formally  directing  its  suspension  during 
the  continuance  of  the  rebellion,  whenever  and  wherever  the  President  might 
find  it  necessary  to  secure  the  enforcement  of  the  law’s.  And  this  ought  to  be 
an  end  of  the  controversy. 

ARBITRARY  ARRESTS. 

8.  The  President  is  denounced  for  violating  the  Constitution  by  ihe  “  arbi¬ 
trary  arrests  ”  of  suspected  parties  and  offenders  in  cases  not  founded  on  “in- 


formation”  or  “indictment,” — and  for  authorizing  their  imprisonment  without 
a  trial  and  convictiou  by  a  jury. 

These  charges  are  usually  vindictive  and  malicious,  and  are  in  the  first  in¬ 
stance  uttered  for  partizan  effect, — and  are  doubtless  repeated  by  the  shallow 
minded  and  unreflecting  under  the  belief  that  no  arbitrary  arrest  is  legal  and 
constitutional.  Nothing  could  be  farther  from  the  truth.  Any  citizen  has  a 
perfect  inherent  right  to  arrest  a  criminal  without  process  and  to  restrain  him 
until  process  can  be  secured.  And  any  citizen  has  a  right  without  process  to 
arrest  a  party  to  prevent  the  commission  of  crime,  and  to  restrain  him  until  the 
danger  has  passed.  This  is  done  every  day  and  every  night  in  the  great  cities. 
Men  are  discovered  apparently  on  the  point  of  committing  crime,  as  an  assault 
and  battery,  a  burglary,  a  robbery,  or* a  murder,  and  are  seized  and  incarcer¬ 
ated  or  otherwise  restrained  of  their  liberty  to  prevent  the  commission  of  the 
offence.  In  all  such  cases,  even  in  times  of  profound  peace,  it  is  idle  to  insist 
that  the  arrest  must  be  preceded  by  a  formal  “  information”  or  “indictment,” 
or  that  a  “jury  trial”  must  precede  an  imprisonment.  There  would  be  no 
time  for  this — the  delay  would  be  fatal :  instant  action  is  necessary  to  prevent 
the  crime.  Such  arrests  are  therefore  not  only  right — but  a  refusal  to  make 
them  would  be  a  crime  against  society. 

The  President,  when  convinced  that  persons  were  about  to  commit  treason — 
the  gravest  crime  known  to  the  laws,  has  caused  their  arrest  and  restraint  as  in 
the  case  of  Yallandigbam,  of  Ohio,  and  Jones,  of  Iowa,  until  the  danger  had 
passed,  when  they  have  been  set  at  liberty. 

I  am  not  here  undertaking  to  justify  any  specific  case  of  arrest  made  without 
process.  Some  of  them  may  have  been  unnecessary,  and  may  have  worked 
great  personal  hardship.  The  President  may  not  have  been  correctly  informed, 
and  may  have  erred  in  any  given  case.  He  could  not  be  everywhere  in  per¬ 
son  and  must  necessarily  rely  on  others  for  information.  All  I  claim  here  is 
that  he  intended  to  do  right,  and  that  in  principle  he  had  a  perfect  right  to 
make  arrests  without  process  to  prevent  the  commission  of  crime.  If  not,  why 
not?  We  have  seen  ihat  a  private  citizen  may  do  this— yea,  more,  that  it  is 
his  duty  to  do  so — and  a  wrong  akin  to  a  crime  to  refuse  when  he  has  the  power. 
May  not  the  President  do  what  a  private  citizen  may  do  to  prevent  the  com¬ 
mission  of  offenses  ? 

In  the  case  of  an  arbitrary  arrest  by  a  private  citizen  without  process,  if  the 
restraint  were  to  be  protracted,  the  party  could  sue  out  a  writ  of  habeas  corpus , 
and  secure  his  discharge  by  the  judge  of  any  court  of  competent  jurisdiction. 
But  if  made  by  the  President  in  times  of  “invasion  or  insurrection”  he  could 
if  he  deemed  that  the  public  safety  required  it,  as  we  have  seen  suspend  the 
privilege  of  this  writ  and  retaiu  the  person  in  custody. 

If  any  doubt  might  otherwise  exist  on  this  point  it  ought  to  be  settled  in  the 
minds  of  those  who  reverence  the  courts  by  their  decisions  in  the  case  of  the 
arrest  and  restraint  of  Yallandighain  by  General  Burnside.  While  still  in  cus¬ 
tody,  application  was  made  to  Judge  Leavitt,  of  the  United  States  Court  for  the 
Southern  District  of  Ohio,  for  a  writ  of  habeas  corpus.  Yallandigham  was 
fully  heard  in  an  able  and  exhaustive  argument,  delivered  by  his  personal  and 
political  friend,  ex-Attorney  General  of  Ohio,  George  E.  Pugh,  who  for  six  years 
was  a  representative  of  the  Ohio  Democracy  in  the  United  States  Senate,  and 
Judge  Leavitt  refused  to  issue  the  writ.  This  was,  in  effect,  deciding  that  the 
arrest  was  constitutional ;  tor  no  other  question  could  legitimately  arise  than 
the  power  of  the  President  to  make  the  arrest  without  process,  and  the  con¬ 
stitutionality  of  the  restraint.  In  applying  for  this  writ  the  party  must  allege 
that  he  has  been  illegally  arrested  and  restrained  of  his  liberty,  setting  forth  the 
pretended  grounds  of  restraint,  if  kuown.  When  brought  before  the  court  or 
‘udge,  according  to  the  principles  of  the  common  law,  the  question  of  guilt  or 


7 


innocence  is  never  tried.  The  legality  of  the  restraint  is  the  only  question  that 
can  be  put  in  issue.  But  the  judge  or  court  would  not,  of  course,  issue  the 
writ  and  bring  the  party  before  the  court  for  a  hearing  unless,  according  to  his 
own  showing,  his  arrest  was  illegal.  As  Judge  Leavitt  refused  the  writ,  it  is, 
in  effect,  an  affirmation  of  the  legality  of  the  restraint.  Nor  can  this  decision 
be  justly  attributed  to  political  bias.  For  this  judge  was  appointed  by  Presi¬ 
dent  Jackson,  many  years  before  the  existence  of  the  Republican  party,  and 
be  has  never  been  accused  or  suspected  during  his  long  official  career  of  the 
siighest  divergence  from  the  line  of  judicial  rectitude. 

An  appeal  was,  however,  taken  in  the  Yallandigham  case  to  the  Supreme 
Court  of  the  United  States,  in  an  application  for  a  writ  of  certiorari ,  or  an  or¬ 
der  on  the  Judge  Advocate  General  to  send  the  case  to  the  Supreme  Court  for 
re-hearing.  This  application  was  refused  after  a  full  hearing  in  open  court. 
In  other  words,  the  decision  of  Judge  Leavitt  was  sustained  by  the  Supreme 
Court ;  and  the  question  practically  settled  by  the  court  of  the  last  resort,  that 
during  a  rebellion  or  invasion  the  President  may  legally  arrest  suspected  per¬ 
sons  without  process,  and  when  in  his  opinion  the  public  safety  requires  it,  may 
suspend  the  right  to  the  use  of  the  writ  of  habeas  corpus,  and  retain  them  in 
custody  until  the  danger  has  passed.  This  right  is  therefore  affimed  by  every 
department  of  the  Government,  by  Congress,  by  the  President,  and  by  the 
Courts.  And  finally  the  Copperhead  National  Convention  at  Chicago  has  stul¬ 
tified  all  that  Copperhead  senators,  and  members,  and  newspapers,  and  stump 
speakers,  have  said  in  denunciation  of  “  arbitrary  arrests,”  by  the  nomination 
of  Major  General  McClellan  for  the  Presidency,  after  his  arbitrary  arrest  ”  of 
the  members  of  the  Maryland  legislature. 

TRIAL  OF  ACCUSED. 

9th.  But,  it  is  demanded,  “  why  are  not  these  parties  put  on  trial  ?”  “  Ad¬ 

mitting  the  necessity  and  legality  of  the  arrests  and  restraint,  surely  they  have  a 
right  to  trial  by  a  jury  of  their  countrymen,  and  to  be  confronted  with  the 
witnesses  who  testify  against  them.” 

This  is  more  spacious  than  sound.  In  the  class  of  arrests  made  to  prevent 
the  commission  of  crime,  how  would  it  be  possible  to  put  the  parties  on  trial? 
How  could  you  try  a  party  for  an  offence  not  committed  ?  The  utmost  that 
could  be  demanded  would  be  the  release  of  the  suspected  parties,  on  giving 
bond  and  satisfactory  security  to  keep  the  peace.  And  this  has  been  done  in 
every  case  where,  in  the  opinion  of  the  President,  it  was  compatable  with  the 
public  safety.  But  putting  a  party  under  bonds  is  but  another  mode  of  restraint 
substituted  for  imprisonment.  It  is  the  same  in  principle.  The  right  to  do  the 
former  involves  the  right  to  do  the  latter. 

In  cases  of  arrest,  after  the  commission  of  the  crime,  what  authority  has  the 
President  to  try,  condemn,  and  punish  the  offenders?  The  Constitution  says: 

“No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public  danger.” — 
(Article  5,  Amendments  to  the  Constitution.) 

Hence,  the  President  and  all  his  Cabinet,  the  Congress,  and  all  the  Courts 
combined,  have  not  the  constitutional  power  to  put  a  man  on  trial  for  an  alleged 
crime,  except  in  the  nature  of  a  preliminary  examination  for  the  purpose  of 
eliciting  facts  to  justify  restraint  of  the  suspected  party.  This  can  be  done  only 
by  a  grand  jury.  The  President  has  the  constitutional  right  to  arrest  and  re¬ 
strain  during  the  continuance  of  the  rebellion  any  offender,  or  person  about  to 
commit  a  crime,  so  long  as  the  public  safety  may  require  it.  To  deny  this 
right  is  to  deny  the  validity  of  the  Constitution.  But  he  has  no  right  to  try  in 


8 


the  judicial  sense,  or  to  convict,  condemn,  or  punish  any  one;  this  is  the  pro¬ 
vince  of  the  jury,  the  court,  and  the  sheriff.  Nor  has  the  President  put  on 
trial,  in  the  judicial  sense,  or  punished  any  one  not  in  the  land  or  naval  forces. 
When  restrained  of  their  liberty  by  placing  them  under  guard,  or  withiu  the 
walls  of  fortifications,  the  confinement  was  not  in  the  nature  of  punishment,  nor 
considered  or  intended  to  be  considered  infamous.  They  would  be  liable  after¬ 
ward  as  much  as  before  such  restraint  to  indictment  aud  punishment  by  the 
civil  authorities. 

It  follows,  therefore,  that  the  President  has  proceeded  as  far  as  he  has  the 
right  under  the  Constitution,  and  not  one  hairs-breadth  farther.  The  “  Copper¬ 
heads  condemn  him  as  a  violator  of  the  Constitution  for  doing  what  the  Con- 
stitution  clearly  authorizes  ;  and  condemn  him  for  not  doing  what  the  Consti¬ 
tution  as  clearly  prohibits.” 

But  it  is  needless  to  pursue  this  subject.  All  these  cavils  and  charges  of  un- 
constitutionality  are  as  empty  as  the  wind.  They  are  without  a  decent  pretext. 
They  all  vanish  under  a  candid,  impartial  analysis.  No  one  can  carefully  ex¬ 
amine  them  and  avoid  the  conclusion  that  the  measures  of  the  existing  Admin¬ 
istration  are  in  strict  accordance  with  the  Constitution  and  laws. 

I  therefore  conclude  with  the  declaration  that,  in  my  opinion,  a  more  pure- 
minded,  disinterested,  self-sacrificing,  generous,  humane,  patriotic,  laborious, 
and  God-fearing  man  never  administered  the  affairs  of  a  great  nation  than 
Abraham  Lincoln.  And  that  no  living  man,  whose  name  has  been  mentioned 
in  that  connection,  could  be  more  safely  trusted  . in  the  presidential  office  for 
the  next  four  years.  And  that  no  one  more  richly  deserves  the  second  office 
in  the  gitt  of  the  American  people  than  Andrew  Johnson,  of  Tennessee.  And 
that  if  all  who  believe  as  I  do  perform  their  duty  resolutely  and  faithfully, 
their  triumphant  election  is  as  certain  as  the  succession  of  day  and  night. 


PRESIDENTIAL  CAMPAIGN  OF  1864. 

UNION  CONGRESSIONAL  COMMITTEE. 


Hon.  E.  D.  MORGAN,  of  New  York. 
“  JAS.  HARLAN,  of  Iowa. 

“  L.  M.  MORRILL,  of  Maine. 

(Senate.) 


E.  D.  MORGAN,  Chairman. 


Hon.  E.  B.  WASHBURNE,  of  Illinois. 

“  R.  B.  VAN  YALKENBURG,  N.  Y. 
“  J.  A.  GARFIELD,  of  Ohio. 

“  J.  G.  BLAINE,  of  Maine. 

House  o  f  Representatives. 

JAS.  HARLAN,  Treasurer.  D.  N.  COOLEY,  Sec’y. 


Committee  Rooms,  Washington ,  D.  C.t  Sep.  2,  1864. 
Dear  Sir:  The  Union  Congressional  Committee,  in  addition  to  the  documents 
already  published,  propose  to  issue  immediately  the  following  documents  for  dis¬ 
tribution  among  the  people: 

1.  McClellan’s  Military  Career  Reviewed  and  Exposed. 

2.  George  H.  Pendleton,  his  Disloyal  Record  and  Antecedents. 

3.  The  Chicago  Copperhead  Convention,  the  men  who  composed  and  controlled  it. 

4.  Base  surrender  of  the  Copperheads  to  the  Rebels  in  arms. 

6.  The  Military  and  Naval  Situation,  and  the  Glorious  Achievements  of  oar  Sol¬ 
diers  and  Sailors. 

6.  A  Few  Plain  Words  with  the  Private  Soldier. 

7.  What  Lincoln’s  Administration  has  done. 

8.  The  History  of  MoClellan’s  “Arbitrary  Arrest”  of  the  Maryland  Legislature. 

9.  Can  the  Country  Pay  the  Expenses  of  the  War? 

10.  Doctrines  of  the  Copperheads  North  identical  with  those  of  the  Rebels  South. 

11.  The  Constitution  Upheld  and  Maintained. 

12.  Rebel  Terms  of  Peace. 

13.  Peace  to  be  Enduring,  must  be  Conquered. 

14.  A  History  of  Cruelties  and  Atrocities  of  the  Rebellion. 

15.  Evidences  of  a  Copperhead  Conspiracy  in  the  Northwest. 


Printed  by  L.  Towers  for  the  Union  Congressional  Committee. 


